HEALTH CARE

Justices Signal Distaste for Cutting Up Health Reform Law

By Margot Sanger-Katz and Naureen Khan

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People file out of the Supreme Court after the morning session on Wednesday.(Chet Susslin)

The Supreme Court suggested on Wednesday morning that it is in no mood to do intricate surgery on the 2010 health care reform law, even if the individual mandate is struck down, with liberal justices saying that Congress should come back in and make any needed fixes.

The third and final day of oral arguments on the law was set aside for two separate questions--what to do if the requirement to buy insurance is ruled unconstitutional, and whether the federal government is going too far in making states expand Medicaid. The morning was devoted to the severability question.

"Why shouldn't we let Congress" decide what to do, Justice Sonia Sotomayor asked lawyer Paul Clement, who is arguing on behalf of 26 states challenging the law. "What's wrong with leaving it in the hands of people … not us?" she continued.

An hour and a half was set aside for arguments about whether any of the Obama administration’s signature domestic initiative could survive if the requirement that people buy health insurance is removed. Clement said that the law would be a “hollowed-out shell.”

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Chief Justice John Roberts and Justice Anthony Kennedy seemed to be genuinely struggling with the question of how best to sever the mandate from the rest of the law, noting that there haven’t been a lot of other cases where an unconstitutional part of a law is central to the law’s provisions.

Justices Sotomayor, Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer seemed to have made up their minds that if the mandate is cut, then other provisions that depend on the mandate must go, too. “This seems like a situation where Congress would prefer half a loaf,” Kagan said.

“Why should we say it’s a choice between a wrecking operation, which is what you are proposing, or a salvage job?” Ginsburg asked Clement. “The more conservative choice would seem to be the salvage job.”

Members of Congress were right there to weigh in on these thoughts.

Rep. Joe Courtney, D-Conn., said it was “ludicrous” to suppose the whole law would fall if the mandate was carved out.

“There are many provisions that have to do with access and quality that are not tied to the mandatory mandate,” he said outside, after the morning session. “Any judicial restraint in the conservative justices hopefully will respond to something that’s that obvious.”

While demonstrations have kept the scene outside the Court colorful and spectators have lined up for days to get in on the action, on Wednesday morning the Court seemed a little less packed, and a few empty seats could be spotted.

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The justices have been presented with three basic options for how to treat the law should the mandate be struck down.

The 26 states and private groups challenging the Affordable Care Act argue that it must rise or fall as a unit. With its intertwined provisions and the difficult political trade-offs made while it was written, they say Congress would never have passed the bill without the mandate or other key insurance reforms. They are also appealing to the Court’s desire for judicial modesty. Legislating is the job of Congress, they say, and the justices shouldn’t do the work of deciding which provisions of the law should fall or stand--something Sotomayor seemed to also argue for on Wednesday.

The Obama administration agrees that the law won’t work if the mandate is simply eliminated. But it is recommending a less drastic revision: eliminating provisions that require insurers to accept all comers and that limit the variation in prices that can be charged to customers based on their age or health history. Otherwise, individual insurance premiums could soar, pricing the uninsured out of the market and driving insurers out of business.

A third option would be simply excising the mandate and leaving the rest of the law as is. That’s the option chosen by the 11th Circuit Court of Appeals that is being appealed at the Supreme Court. To suggest that alternative, the justices have hired an independent lawyer, H. Bartow Farr, a partner at Farr & Taranto.

The justices are free to divide the law in any number of other ways, and they have reams of friend-of-the-court briefs suggesting various options. Nearly every player in the health care industry has an interest in seeing this or that provision removed from the law, and many have argued their case in their briefs.

But Scalia indicated he was in no mood to do intricate surgery on the complex law. “My approach would be, if you take out the heart of the statute, the statute is gone. It reduces our choices the most and increases Congress’s,” he said.

“There is no way that this Court’s decision is not going to distort the congressional process,” he added. “Why isn’t it better to have them reconsider it in toto?”